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Obama and the D.C. Circuit: Three Vacancies, No Confirmations

By Robyn Hagan Cain on October 05, 2012 | Last updated on March 21, 2019

The D.C. Circuit Court of Appeals is frequently referred to as the nation's second-highest court. Even in the burgeoning realm of federal court fiction, the D.C. Circuit is considered to be the "most prestigious and arguably most powerful federal appeals court."

With so much power at stake, presidents are typically itching for an opportunity to make judicial nominations for the D.C. Circuit, but that doesn't mean that they can deliver a confirmation. Case in point: At the end of his first term, it's unlikely that President Obama will have added a single judge to the D.C. Circuit Court of Appeals, Reuter reports. While there are three vacancies on the bench, Obama is about to become the first president in at least half a century to finish a full term without an appointment to the circuit.

So why is this particular appellate court such a big deal?

The D.C. Circuit may have the smallest geographic jurisdiction of the appellate courts, but it’s viewed as a feeder court for the Supreme Court. Four of the current Nine are former D.C. Circuit judges: Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg. (President Clinton nominated Justice Elena Kagan for the D.C. Circuit, though she was never confirmed.)

Since the court hears most of the country’s administrative appeals, it can have a significant impact on regulatory policy. In the past year, for example, the Circuit has struck down Food and Drug Administration regulations providing for graphic warning labels on cigarette packaging, and the Securities and Exchange Commission’s proxy access rule. In theory, an administration’s policies are more likely to survive the circuit if the bench is staffed with judges who share the president’s views.

Of course, it’s not as if President Obama hasn’t tried filling D.C. Circuit vacancies.

In June, Obama nominated Caitlin Halligan and Sri Srinivasan for two of the openings. Halligan, whose first nomination for the court was filibustered, is the general counsel of the Manhattan District Attorney’s office. Srinivasan is the Principal Deputy Solicitor General. By custom, however, Senators typically do not approve judicial nominations close to a presidential election.

If President Obama wants to leave his mark on the D.C. Circuit, it looks like he’ll need to win a second term.

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